Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others

The applicants in two related matters were Mozambican citizens who had acquired permanent residence in South Africa after fleeing civil war in Mozambique. They were indigent and would otherwise have qualified for social assistance under the Social Assistance Act 59 of 1992, including old-age grants, child-support grants, and care-dependency grants. Their applications were refused, or existing grants withdrawn, solely because the Act restricted eligibility for these grants to South African citizens. The applicants challenged the constitutionality of sections 3(c), 4(b)(ii), and 4B(b)(ii) of the Act, which limited access to social grants to citizens. The Transvaal Provincial Division of the High Court declared these provisions unconstitutional and referred the orders of invalidity to the Constitutional Court for confirmation.

The Constitutional Court confirmed the orders declaring sections 3(c), 4(b)(ii), and 4B(b)(ii) of the Social Assistance Act unconstitutional and invalid to the extent that they excluded permanent residents from social assistance. The effect was that permanent residents became eligible for social grants on the same basis as citizens.

This case is a leading authority on the constitutional rights of permanent residents in South Africa. It affirmed that permanent residents are entitled to social assistance and that citizenship-based exclusion from socio-economic benefits may amount to unfair discrimination. The judgment significantly expanded access to social security and clarified the application of equality and socio-economic rights in South African constitutional law.